Thursday, 19 February 2009

Two Grand Chamber Judgments Today

Today the Grand Chamber of the Court issued two judgments. The first was the Turkish case of Kozacioğlu in which the Grand Chamber unanimously found a violation of Article 1 of Protocol 1 ECHR (peaceful enjoyment of property). That cleared the skies of legal opaqueness, since the Chamber judgment (2007) in the same case had seen a heavily divided Court vote for a violation as well (four votes against three). The case concerned the expropropriation of a building with historical and cultural value. The core of the case was its monetary value, however. The applicant claimed that he had not been given sufficient compensation, since the building's historical value had not been taken into account as Turkish law forbade that such features would ever be taken into account to an original owner's benefit. The Grand Chamber held that such historical or cultural value, no matter how difficult to assess, should be taken into account to "a reasonable degree" (although that does not mean the full market value). Good times ahead for experts of historical monuments in this difficult economic crisis! The applicant in the case was awarded 75,000 euros for pecuniary damage (the same amount as the Chamber had originally awarded).

The second Grand Chamber judgment of today is prone to raise much more public interest: A. and others v. the United Kingdom. It focuses on the statutory scheme under which non-British suspects of involvement in terrorism were detained indefinitely. The scheme was set up after the terrorist attacks of 11 September 2001 and functioned until its abolition by parliament in 2005. Now, the European Court confirmed what national courts had also found: the scheme was discriminatory in that it made unjustified distinctions between nationals and non-nationals. The Grand Chamber found various violations of the right to liberty (Article 5), including the right to habeas corpus and the lack of compensation rights on the national level. The European Court itself did award compensation, but interestingly these amounts were explicitly much lower than normally. It justified this as follows in its judgment:

252. (...) In the aftermath of the al'Qaeda attacks on the United States of 11 September 2001, in a situation which the domestic courts and this Court have accepted was a public emergency threatening the life of the nation, the Government were under an obligation to protect the population of the United Kingdom from terrorist violence. The detention scheme in Part 4 of the 2001 Act was devised in good faith, as an attempt to reconcile the need to prevent the commission of acts of terrorism with the obligation under Article 3 of the Convention not to remove or deport any person to a country where he could face a real risk of ill-treatment (see paragraph 166 above). Although the Court, like the House of Lords, has found that the derogating measures were disproportionate, the core part of that finding was that the legislation was discriminatory in targeting non-nationals only. Moreover, following the House of Lords' judgment, the detention scheme under the 2001 Act was replaced by a system of control orders under the Prevention of Terrorism Act 2005. All the applicants in respect of whom the Court has found a violation of Article 5 § 1 became, immediately upon release in March 2005, the subject of control orders. It cannot therefore be assumed that, even if the violations in the present case had not occurred, the applicants would not have been subjected to some restriction on their liberty.253. Against this background, the Court finds that the circumstances justify the making of an award substantially lower than that which it has had occasion to make in other cases of unlawful detention.

Apart from this, the judgment contains almost too many aspects of value to mention: thoughts on of derogations from the Convention in times of emergency, on the fact that this kind of detention was not contrary to Article 3 ECHR, and on the possibilities under which such detainees could challenge the suspicions against them. Thus, although the scheme itself may have been abolished, the judgment is a bonanza of information on the topic of human rights protection in the context of the fight against terrorism.

2 comments:

Anonymous
said...

Dear AntoineWhat do you think of the fact that the court seems to have carefully avoided the problems raised by art 13, in particular the fact that the HL cannot issue a binding order, as a declaration on incompatibility does not affect the continuing validity of the provision against which it is made. How effective is the remedy if despite the HL's ruling the persons remained incarcerated?BestPeggy

Dear Peggy,Good point; my inkling is that since to a certain extent - as the previous law has already been changed - the Court was dealing with what in practice is more or less a moot point. Therefore, it may have wished to focus on the issues of indefinite detention and remedies (in that specific context) under Article 5 in order to clarify the Convention's meaning also for other and future situations of this kind of detention. As you may know, the Court more often chooses to deal only with certain rights among the complaints made. Hopefully in a future case, the Court will address this issue you mention.